نظرية الجحود المبتسر للالتزامات العقدية في النظام القانوني الانكلو أمريكي : دراسة مقارنة

Abstract EN

The theory of anticipatory breach of contract is one of the novelties of Anglo – American legal system, unknown by other legal systems such as French and German.

According to this theory, it is permissible for the creditor to disaffirm the contract and suing for damages, if it appears certain or probable that the debtor is unwilling or unable – legally,economically,or technically to perform his obligations – stipulated by the contract with his creditor – when the fixed time will come.

In spite of the fact that this theory has been opposed by many English and French jurists since it deviates from the traditional legal norms which forbid to rescind the contract unless the other party breach actually one of his obligations, the right of the creditor can not be based on mere expectation or possibility of the breach, nevertheless it has not been confined to Anglo – American legal system only,but it has been inserted also by many international conventions such as Vienna Convention for International Sale of Goods dated 1980 and many Software laws such as the European Contract Law dated 2002; for its undeniable practical convenience.

The research had been divided into three chapters, in the first chapter the researcher has dealt with the legal basis for theory of anticipatory breach of contractual obligations and its legal constituent elements, whereas the second chapter has been specified for the legal effect of the theory of anticipatory breach, which has been subdivided into three sub – chapters the first dealt with the duty of notification and submitting the guarantees ; and the second has analyzed the options of the creditor after the breach anticipatorily and the third dealt with the scope of damages – given to creditor – under this theory.

While the third chapter has been devoted to examine the standpoint of some Arab – Civil Codes (including the Iraqi Civil Code dated 1950) and the Iraqi Judiciary system from the theory of anticipatory breach of contractual obligations.

Finally, the researcher has summed up his research by many recommendations and proposals; hoping that Iraqi legislative organs and judiciary system to adopt them.